“WHAT IS IT HARD?”* Photography Part 1

Has anybody ever considered the legal consequences of taking photographs of famous or not so famous places at a family outing or vacation destination? Most people do not think about the legalities, but if anyone considers using their photographs for commercial purposes, then there are an amazing number of legal land mines to avoid.  First the good news: The photographer owns the copyright in his or her actual creation of a two-dimensional photographic image.[1] This copyright protects features such as lighting, positioning of the subject matter, and the angle at which the photograph is taken.

However, the photographer’s rights often end here. For example, if the photograph comprises an image of sculpture or statues, then one cannot use the image unless an exception to copyright infringement applies.[2] One such exception is that there is no copyright infringement liability if a photographer captures a two-dimensional image of architecture[3] (i) from a position in a public space, or (ii) the building is located within a public place.[4] In fact, even if a photographer creates an image of a building interior from a public location, then there is generally no copyright infringement liability.[5]

However, images of non-architectural building features taken from a public space could result in copyright infringement liability. For example, if a two-dimensional design is attached to a building exterior, then the design may comprise its own independent copyright eligibility.[6] Moreover, if a sculpture comprises an integral part of the architecture then a dispute could arise on whether the sculpture is a separate copyright eligible component.[7] In other words, if the sculpture is integrally part of the architectural design, then a third party may properly (i) create images of the building for commercial purposes (ii) from a public place, or if the building is located in a public place. [8]

In addition to copyright, photographers may inadvertently create images comprising subject matter under trademark protection. For example, numerous building and business owners hold federal trademark registrations for images of the Rock and Roll Hall of Fame building facade as well as the Empire State Building. [9] If photographers create works which include these images then they are most likely liable for trademark infringement.

Elle Woods in “Legally Blonde.”

©2020 Adrienne B. Naumann, Esq. All rights reserved. Ms. Naumann does not sponsor or endorse the advertisements at adriennebnaumann.wordpress.com.

[1] 17 U.S.C. 102(8).

[2] Davidson v. U. S., 138 Fed. Cl. 159 (Fed. Cl.  July 18, 2017) (fair use of sculpture); Gaylord v. U. S., 595 F.3d 1364 (Fed. Cir. 2010) (photograph of statues resulted in copyright infringement). 

[3] 17 U.S.C 101(definition of architecture).

[4] 17 U.S.C. 120(a).

[5] Kitchen & Bath Concepts of Pittsburgh LLC v. Eddy Homes, 2016 U. S. Dist. LEXIS 177016 (W.D. Penn. December 22, 2016) (photographs of constructed work, and within a building visible from a public place, do not comprise copyright infringement.).

[6] Falkner v. GM_LLC, 393 F. Supp. 3d 927 (C. D. Calif. 2018)(mural on exterior building wall is not part of a parking garage under 102(a) as a matter of law); but see Mercedes-Benz USA LLC v. Lewis et al., 2019 U. S. Dist. LEXIS 154818 (E.D. Mich. September11, 2019) (plausible claim that a party photographed murals as part of publicly visible buildings without copyright infringement).                  

[7] See Leicester v. Warner Brothers, 232 F.3d 1212 (9th Cir. 2000).

[8] Id.

[9]  See Rock and Roll Hall of Fame and Museum et al. v. Gentile Productions et. al., 134 F.3d 749(6th Cir. 1998) (posters of building’s exterior facade); ESRT Empire State Building LLC v. Michael Liang, 934 F. Supp 868 (N.D. Ohio 1996); see also New York Stock Exchange v. New York, New York Hotel, 293 F.3d 550 (2d Cir. 2002)


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